AHEAD OF A meeting with unions in July, the government expressed concern that classifying Covid-19 as an “occupational illness” – where incidences in work would have to be reported and investigated – could have serious consequences for both employers and the State in terms of liability.

The Irish Nurses and Midwives Organisation (INMO) is amongst the bodies backing the move, telling TheJournal.ie that it is “scandalous that there is no State agency” to protect workers and means the government is “failing in its duty to workers particularly those in front line health services who are risking all for us”. 

Its deputy general secretary David Hughes said: “The fact that the virus is not treated as an occupational illness beggars belief. Classifying Covid as an occupational illness would not only be reflecting reality but would give frontline staff the additional protections they deserve.”

He also said that questions of liability “are secondary to the need to protect staff”.

TheJournal.ie understands that around the time Tánaiste and Minister for Business Leo Varadkar held a meeting with the Irish Congress of Trade Unions (ICTU) in July, there were major concerns at departmental level that designating Covid-19 as such could lead to a substantial employer liability being created for businesses. 

Concerns were also raised that some unions were pushing for the move on the basis that it would require the State body through which workplace injuries are reported – the Health and Safety Authority (HSA) – to investigate every workplace notification of Covid-19. 

Across a number of sectors, unions are also calling for outbreaks of Covid-19 in a workplace to be investigated by the HSA to establish if that workplace has breached the guidelines they were given for re-opening. 

What is an occupational illness?

Covid-19 is currently a notifiable disease. This basically means that when a medical practitioner identifies a person as having the disease through testing, it must notify the Chief Medical Officer. This is how we get a daily figure for new cases in Ireland.

According to the Health Protection Surveillance Centre, the information gained through the notification of disease is “used to investigate cases thus preventing spread of infection and further cases”. 

In health and social care settings, the State Claims Agency is also notified of positive tests.

While cases of Covid-19 must be notified in these instances, it is not classified as an occupational disease. 

An occupational illness – as described by the World Health Organization – is “a disease contracted primarily as a result of an exposure to risk factors arising from work activity”.

Examples could be acquiring an injury or illness through exposure to a dangerous chemical or damage to your hearing caused by excessive noise in work. Changes to legislation would be required for Covid-19 to be classed as an occupational illness.

Designating Covid-19 an occupational illness could leave employers open to have cases for damages pursued against them in the future in the event that a worker became seriously ill or died as a result of developing the disease through the workplace.

Documents released to TheJournal.ie under the Freedom of Information Act show the Department of Business has had reservations for some time around the implications of making Covid-19 an occupational illness.

The documents also detail the discussions between the Department of Business and the Health and Safety Authority (HSA) – the statutory body that inspects workplaces – on this topic. 

‘Potential implications’

In briefing notes prepared for Tánaiste and Minister for Business Leo Varadkar in recent months related to the HSA and occupational illnesses, numerous references are made to the “potential implications” of designating Covid-19 an occupational illness.

One such instance came at a meeting between Varadkar and HSA CEO Sharon McGuinness that took place on 7 August. 

A background note on that meeting said: “Under occupational safety and health legislation, employers are required to report all workplace accidents that result in more than three days absence.

“This does not apply to a person who suffers from a disease, occupational illness or any impairment of mental health in the workplace.”

It said that the potential implications for introducing mandatory reporting of occupational diseases or illnesses needed to be considered.

“These include the fact that many employers would not be able to attribute the diagnosis of an illness such as Covid-19 with any degree of reliability, to a particular workplace, since Covid-19 can be acquired in either a community or a workplace setting,” it said.

Fears were also raised that it would give employees an obligation to provide “detailed confidential medical information” to their employer, which may breach their right to privacy. 

The note concluded that the HSA was considering these matters, in consultation with the HSE and the State Claims Agency, and hoped to have this review completed by early September.

It is however, understood, that another consideration for government is the liability that would be created for employers and the State if Covid-19 was deemed an occupational illness.

Health services

In a briefing note for the Tánaiste ahead of the meeting with the Irish Congress of Trade Unions (ICTU), Varadkar was told his predecessor as Minister for Business Heather Humphreys would not commit to classifying Covid-19 as an occupational illness.

Varadkar was told: “With the significant number of Covid-19 cases in the health sector, both ICTU and Irish Nurses and Midwives Organisation (INMO) are of the view that such cases should be reported directly to the HSA for follow up and investigation.”

Healthcare workers account for 28% of all Covid-19 cases in Ireland to date, with some 8,976 workers diagnosed with the disease. 329 have been hospitalised due to Covid-19 and eight have died. 

According to an INMO statement in June, 88% of healthcare workers got Covid-19 at work. 

The union’s deputy general secretary David Hughes told TheJournal.ie: “The HSE records that a large majority acquired the virus in hospitals, nursing homes, and other workplaces. The fact that the virus is not treated as an occupational illness beggars belief.

The virus is something which people get in the course of their work, because of their work, and the employer must take all necessary precautions to prevent that. It is a textbook case of what health and safety laws are for.

As well as the confidentiality concerns, the Tánaiste was also told in this note that making Covid-19 an occupational disease “could also have the the effect of making all infectious diseases such as the influenza virus reportable workplace accidents even though they are more generally acquired by community transition”.

The note adds:

This meeting is an opportunity to understand if ICTU and the INMO are looking for only Covid-19 to be reportable as an occupational illness, whether this should apply to all workplaces, and if so, what their views might be around employer liability and employee protection in doing so.

As well as the concerns around employer liability and the potential need for employers to secure extra insurance cover, TheJournal.ie understands that concerns were also raised that making this a reality would also have implications for the current work the HSA is doing inspecting workplaces around the country. 

By this time in late July, the HSA had completed 73 inspections and investigations in the health sector since the onset of the pandemic. Such large-scale inspections, however, were deemed arduous and time-consuming tasks for a body that is responsible for inspecting thousands of businesses across the country. 

The HSA was aware of eight deaths in healthcare workers by this time and was following up on these cases. 

Underlined in the note, however, is the next line: “However, as in other cases and other sectors, not all fatalities necessarily end up being attributable to a workplace activity especially in circumstances where death has occurred due to illness/disease.”

Across briefing notes for the Tánaiste in recent months, the government has maintained the position that since it is difficult to identify definitively that someone acquired Covid-19 in a workplace, designating it an occupational illness would be problematic. 

Next steps

The government did indicate, however, that it was happy for the HSA to conduct a review into the matter. 

The INMO is clear in the view that Covid-19 must be given this designation.

“Too many healthcare workers are getting this disease,” Hughes said. “By refusing to declare Covid -19 as an occupationally acquired illness the state is failing in its duty to workers particularly those in front line health services who are risking all for us.

What is the point of applauding frontline healthcare staff if we’re not going to protect them properly?

Varadkar, meanwhile, is of the view that greater legal powers should be given to the likes of the HSA to be informed of clusters of Covid-19 in workplaces and carry out inspections where there has been a cluster.

A spokesperson from the Department of Business said: “It is not reportable as an occupational illness to the Health and Safety Authority (HSA) as coronavirus can be picked up anywhere and there is no reliable way of knowing whether a person picked it up at home, at work, at a social gathering or somewhere else. It’s very different to a workplace injury, for example.

Employers are not routinely told that an employee of theirs has tested positive for virus or any particular illness as this is considered to be private medical information and is a personal data protection matter. For this reason information and contact tracing is conducted through the public health department of the HSE. However, an employer can be informed if an employee refuses to isolate, for example, and is therefore a risk to others.

The Tánaiste met with the CEO of the HSA recently to discuss how the authority and other regulators and inspectorates could be given greater legal authority to be informed of clusters and carry out Covid-related inspections where a cluster occurs in the workplace. He favours this approach. Currently, the HSA has to be asked to get involved by the HSE or Department of Health which holds all the information.

In a statement to TheJournal.ie, the HSA confirmed it was conducting a review on the topic.

A spokesperson said: “The Board of the Authority considered this matter at the June Board meeting (26 June) and subsequently initiated a legislative review of the Safety, Health and Welfare at Work (General Application)(Amendment)(No. 3) Regulations 2016 to consider if reporting of occupational illness and COVID-19 should be required.

“Following completion of the legislative review process, the Board of the Authority may submit to the Minister any proposals or recommendations it considers appropriate.”